If you have kids, you may have noticed a disturbing trend among businesses and organizations that cater to young people; birthday party venues, sports team organizers, and even some churches are requiring a signed release before a child is allowed to participate in recreational activities and other “kid-friendly” events.
The reason, of course, is to attempt to avoid liability in the event that a child is hurt (or, even worse, killed) due to the negligence of the entity asking for the release. The practice is so prevalent that one would be led to think that liability insurance has ceased to be available in this country.
The fact is that liability insurance is widely available and, in most cases, quite affordable. (It’s called “a cost of doing business.”) If no insurance company is willing to assume a particular risk, perhaps this is an indication that the activity in question is too dangerous for minor children anyway.
Facts of the Case
In a recent case decided by the Tennessee Court of Appeals, the plaintiffs were a mother and son who had visited the defendant indoor trampoline park on several occasions. In 2012, the mother signed a contract that contained, among other provisions, a release of liability, a forum selection clause stipulating California as the forum for litigation, and a choice of law provision designating California law as the law to be used in the event of a dispute.
The son was allegedly injured during a trampoline dodge ball tournament in 2013. The mother and son filed suit against the defendant in the Davidson County Circuit Court in 2014, seeking various damages as a result of the son’s injury. After the mother voluntarily dismissed her claim, the son moved to amend his complaint to include a claim for past and future medical expenses.
The trial court denied the defendant’s attempts to enforce the forum selection clause, the choice of law provision, or the waiver against the boy, but the court agreed with the defendant that the boy should not be allowed to alter or amend his complaint to include a claim for medical expenses incurred before he reaches the age of 18.
Holding of the Appellate Court
In a 44-page opinion detailing the law and public policy concerning exculpatory agreements in regards to minors, the court of appeal rejected the defendant’s argument that the contract signed by the mother was enforceable against the son. Pointing to previous Tennessee case law, the court observed that a parent cannot bind a minor child to a pre-injury waiver of liability, a release, or an indemnity agreement. The court thus affirmed the circuit court’s ruling as to the issue of the enforceability of the document at issue against the son.
The appellate court rejected a portion of the lower court’s order concerning the son’s proposed amendment to his complaint. According to the court, the son should be allowed to raise a claim for any pre-majority medical expenses that he pays or is obligated to pay. (Due to the release, which the court found was binding against the mother, the mother cannot recover medical expenses paid on the son’s behalf.)
Do You Have a Question About an Injury on Someone Else’s Property?
An experienced premises liability attorney at the Hartsoe Law Firm, P.C., can help you evaluate your case – including the enforceability of any release you may have signed – if you have been hurt on business property or someone else’s land. Call us at (865) 524-5657 to schedule a free consultation. If you have difficulty coming into our Knoxville or Maryville offices, we can come to your home.
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